Uk Equality Legislation: Specific Duties Consultation

In a previous post I wrote about different approaches to equality under Teresa Rees’s headings: Tinkering, Tailoring, Transforming. Recent equality legislation in the UK has the potential to be a framework for transforming both workplaces and service delivery to incorporate genuine equality. It also has the potential to create self-sustaining bureaucracies that achieve very little. Which happens depends not on the competence of organisations’ equality and diversity personnel but on the extent to which women, and other groups, avail themselves of the opportunities presented. The consultation on the specific duties is one such opportunity. While responding to consultations can seem like a waste of time, if you do not even attempt to make your views known your voice certainly will not be heard. So, if you live in the UK, download the consultation document from the Government Equalities Office website and respond.

The Equality Act 2010 integrates the former general equality duties that applied to disability, race and sex and extends them to apply to other characteristics such as sexual orientation. The general equality duty requires public authorities, which include universities and research councils, to eliminate discrimination and harassment, advance equality of opportunity and foster good relations between members of different groups. In the context of gender, the Act makes it explicit that advancing equality of opportunity includes removing or minimising disadvantages experienced by women (or men) but not by men (or women), taking steps to meet the needs of women (or men) that are different from those of men (or women), and encouraging women (or men) to participate in public life or any other activity in which participation by women (or men) is disproportionately low. (Note: the Act frames these duties in a way that applies to all characteristics. I have used gender as an example to avoid using the jargon that is required for a more general formulation.)

The specific duties are set by regulation and are intended to provide a framework that ensures that something actually happens. Under previous legislation the specific duties varied. For example, the Race Equality Duty had a detailed prescription for data collection in Higher Education. The Gender Equality Duty required public authorities to gather and use information but had no specific requirements for data collection, other than that the requirement ‘to consider the need to include objectives to address the causes of any gender pay gap’ implies that you actually know what your pay gap is.

The previous specific duties for gender were:

•      To prepare and publish a gender equality scheme, showing how it will meet its general and specific duties and setting out its gender equality objectives.
•       In formulating its overall objectives, to consider the need to include objectives to address the causes of any gender pay gap. 
•       To gather and use information on how the public authority's policies and practices affect gender equality in the workforce and in the delivery of services.
•       To consult stakeholders (i.e. employees, service users and others, including trade unions) and take account of relevant information in order to determine its gender equality objectives.
•       To assess the impact of its current and proposed policies and practices on gender equality.
•       To implement the actions set out in its scheme within three years, unless it is unreasonable or impracticable to do so.
•       To report against the scheme every year and review the scheme at least every three years.

[Source: Gender Equality Duty Code of Practice Gender Equality Duty Code of Practice England and Wales EOC 2006]. It was the responsibility of the Equality and Human Rights Commission (EHRC) to enforce the legislation by issuing guidance and, if necessary, through compliance orders or court orders.

The focus of the proposed new specific duties is on accountability through transparency. Public authorities will be required to publish data that will enable citizens and concerned groups to hold public authorities to account. The EHRC will determine what data should be published though the consultation document mentions the gender pay gap, the proportion of staff from ethnic minority communities and the distribution of disabled employees throughout an organisation’s structure.

Differences from the old specific duty for gender are

• Public authorities will no longer be required to have an equality scheme. Consequently there will no longer be requirements to implement the scheme, to report against the scheme or to review the scheme.
• There will no longer be a specific requirement for consultation but public bodies will be expected to be open about how they have engaged with people.
• There will not be a specific duty requiring equality impact assessments as it is expected that equality impact assessment would form part of normal decision-making. However, the annual publication of equality information will include impact assessments.
• Equality objectives should be reviewed every four years.

Differences from the proposals put forward under the previous government are:

• There will be no national priorities set by the Secretary of State.
• There will be no special focus on procurement as the general and specific duties already apply to all the functions of a public body.
• Public bodies will no longer be required to set out the steps they propose to take in order to achieve equality objectives.

The proposed specific duties are

• Workforce Transparency: Public bodies with 150 or more employees will be required to publish data, to be specified by the EHRC, on equality in their workforces. This is expected to include data on their gender pay gap, the proportion of staff from ethnic minorities and the distribution of disabled employees throughout the organisation’s structure. The data will have to be published at least annually.
• Service Provision: Public bodies will be required to publish data, at least annually, that will enable people to judge how effectively they are eliminating discrimination, advancing equality and fostering good relations through the services they provide.
• Setting objectives: Public bodies will be required, as part of their normal business planning process to set equality outcome objectives that are informed by evidence and that are specific, relevant and measurable. This will enable meaningful scrutiny by citizens and other interested groups. The objectives should be reviewed at least every four years.

The focus on outcomes is welcome. Far too much time and effort has gone into producing plans and then writing reports against those plans in which whatever did happen is presented as though it were what was planned. Trying to minimise the work involved in demonstrating compliance is also welcome. Partly because resources should be directed to achieving aims not demonstrating compliance and partly because equality should be embedded within normal procedures and practices not treated as an optional or externally imposed extra.

My concerns are:

1. Will this ‘meaningful scrutiny by citizens and other interested groups’ actually occur? Are there enough people with the time and resources to carry out this scrutiny? How is it envisaged that such people will hold an institution such as a large, research-intensive university accountable?
2. What data will be required? From a mathematical point of view the institutional gender pay gap is a flawed measure of inequality. However, a lot of people have invested a lot of time and effort into promoting it as a measure of inequality so we are probably stuck with it. The minimum amount of information required to make sense of a gender pay gap is the number of men, the number of women, the average salary of the men, the average salary of the women, and the proportion of women by salary band. It would also be helpful to know if women are disproportionately represented in some occupational groups and, in the context of research and academic staff in universities, whether there are differences by discipline. For workplaces that are large enough for such an exercise to be meaningful, it would be useful to know the proportion of women by salary band and age. This would help distinguish between situations where women are hard done by and something should be done and situations where women were hard done by and something has been done. There is no point in devoting time and resources to fixing something that is not broken. The Equality Challenge Unit, which provides guidance on equality for the higher education sector, has suggestions for the data that higher education institutions should use to inform setting equality objectives in their briefing ‘Revising Gender Equality Schemes’  (January 2010) and the ECU Gender Equality Scheme Self-Assessment Tool.
3. If there is a conflict between presenting data and maintaining the privacy of individuals then privacy should be paramount.
4. Objectives should be realistic and achievable as well as measurable. There is no point aiming for some arbitrary percentage of women among some particular group if that cannot be attained within a reasonable timeframe. It is often forgotten that the most important constraint on how fast the proportion of women among academics can change is the rate at which vacancies occur for them to be appointed to, unless new positions are created. Similarly there is no point aiming to train some proportion of your staff in something-or-other if the resources to deliver the training are not available.
5. What do we mean by measurable? For example, in 2004 women made up 49% of acceptances to Natural Sciences at Cambridge. Five years later in 2009 women made up 40% of acceptances to Natural Sciences at Cambridge (Source: Cambridge University Reporter Undergraduate Admissions Statistics Special Issue, No. 15 2009-2010 and 21 February 2005). Is this a worrying decline or a random fluctuation? Having looked at the numbers, I am inclined to the latter view, though the former is tenable depending on how much the data are tortured. It could also reflect a change in the proportion of acceptances to biological Natural Sciences. Suppose the numbers had been the other way around (i.e. 49% in 2009 and 40% in 2004). Would this be evidence that the University was meeting equality objectives?
6. It is hard to see how an institution could set or achieve equality objectives without consulting with relevant groups. It is very important that institutions should be required to state with whom and how they consulted.
7. Institutions should also be required to state what steps they took to achieve their equality objectives. This would aid the ‘citizens and other interested groups’ to assess whether an institution is building a genuinely equal environment or whether it is just managing the numbers. For example, suppose an institution has reduced its gender pay gap. It would be of interest to know if this had been achieved by making lots of catering assistants and clerical workers redundant or by waiting for other institutions to develop the careers of their female staff and then poaching them. In addition it would be useful to other institutions to help them assess what actions are effective.

The proposed specific duties should enable institutions to embed equality within their organisations. If you have a view on whether or not the proposed specific duties make it more or less likely that this will happen then you should respond to the consultation.